According to the Colorado Department of Regulatory Agencies, Denver Wrangler, a gay bar, illegally “discriminated against a man when a bouncer denied him entry last year because he was dressed in drag,” the Associated Press reports. “[R]egulators determined the bar illegally discriminates against effeminate men because its dress code bars high heels, wigs, ‘appearance-altering makeup’ and strong perfume,” the AP reports.

Although it seems odd to me that a gay bar would deny entry to men dressed in drag, and although that may be cause for some people to complain or even boycott the bar, certainly the bar’s owners have a moral right to determine dress and behavior codes within their own establishment, and government has no legitimate business intervening. For more on this idea, see my article for the Objective Standard, “On the Right Not to Bake a Cake.”

“Uganda’s constitutional court on Friday overturned an anti-homosexuality law that punished gay sex with long prison sentences,” Reutersreports (hat tip to the Week). Obviously that’s an improvement—but the fact the law was passed in the first place offers a reminder of how oppressive many of the governments in the world are.

Boulder County, which has issued a couple hundred marriage licenses to gay couples this summer, must stop issuing such licenses at least for now, the Colorado Supreme Court ruled. Related legal action is pending. The Associated Press has the report; hat tip to Complete Colorado.

I have already (tentatively) predicted that Obama will win reelection next year, and nothing coming out of the Republican Party causes me to doubt this. (Of course, it is still early, and the economy as well as the Middle East are especially volatile right now.)

Rick Perry, who I figured would rise to front-runner status, has managed to turn the religious right’s social agenda into his campaign. Consider this headline from yesterday’s Los Angeles Times: “Rick Perry signs anti-abortion pledge.” This is the same issue, more than any other, that cost Ken Buck his senate seat last year.

Now a page of Perry’s 2008 book causes Perry to follow Buck down another dead-end path: toward comparing homosexuality to alcoholism. Lynn Bartels has the details over at the Denver Post.

There is a difference between the comments of Perry and Buck, though.

In order to establish the full context, I’ll quote from Perry’s book On My Honor (page 70) more extensively than Bartels does:

Though I am no expert on the “nature versus nurture” debate, I can sympathize with those who believe sexual preference is genetic. It may be so, but it remains unproved. Even if it were, this does not mean we are ultimately not responsible for the active choices we make. Even if an alcoholic is powerless over alcohol once it enters his body, he still makes a choice to drink. And, even if someone is attracted to a person of the same sex, he or she still makes a choice to engage in sexual activity with someone of the same gender.

A loving, tolerant view toward those who have a different sexual preference is the ideal position — for both the heterosexual and the homosexual. I do not believe in condemning homosexuals that I know personally. I believe in valuing their lives like any others, as our God in heaven does. Tolerance, however, should not only be asked of the proponents of traditional values. The radical homosexual movement seeks societal normalization of their sexual activity. I respect their right to engage in individual behavior of their choosing, but they must respect the right of millions in society to refuse to normalize their behavior.

The key point here that Bartels ignores is that Perry recognizes the political right of consenting adults to engage in homosexual sex. That’s centrally important. Secondarily, Perry calls for “valuing” rather than “condemning” homosexuals. That’s a good start.

Unfortunately, Perry’s position is essentially “love the sinner, hate the sin.” In comparing homosexuality to alcoholism and saying it deserves only “toleration” (as opposed to open acceptance), Perry is basically saying there’s something wrong with homosexuality. And that position is wrong.

Given that Bartels (and others) have compared Perry’s remarks to those of Ken Buck, it is worth returning to Buck’s statements on the matter.

Here’s what Buck said, extemporaneously, on Meet the Press: “I think that birth has an influence over it [homosexuality], like alcoholism and some other things, but I think that basically, you have a choice.” As I have pointed out, Buck’s remark is technically correct. It is indisputably true that “birth has an influence” over sexual orientation, but that “you have a choice” about your sexual partners. For example, some heterosexuals have gay sex or remain celibate, and some homosexuals have straight sex.

Buck’s problem was two-fold. First, his comparison of homosexuality, something inherently fine, to alcoholism, something inherently bad and destructive, was a bad one. However, again his remark is technically true; there does seem to be an inborn component to alcoholism. Perry’s remark is worse because it was written (as opposed to extemporaneous) and because Perry draws a tighter connection (versus Buck’s remark about “some other things”).

Second, Buck was an idiot for not leading with the story about how, as a prosecutor, he pursued hate-crime charges in a transgender-related crime. So here we had a prosecutor whose record was strongly pro-gay rights, being smeared by his critics and the media as some sort of knuckle-dragging troglotyte. That was very unfair toward Buck, though he’s the one who set the tone of the discussion. (Note: I actually disapprove of “hate crime” legislation, because I think all crimes are hate crimes and that harming a heterosexual person is just as bad as harming a homosexual one. Plus I worry about starting down the road to thought crimes. But my motivation is much different from that of the religious right.)

Here Ryan Puzycki and I continue our previous discussion regarding gay marriage and Colorado’s Amendment 43, which defines “marriage” as between a man and woman. To review briefly, we both agree that gay couples should have the ability to contract as heterosexual couples do in romantic unions. However, while Puzycki believes that Amendment 43 should be overturned by the courts, I’m not so sure.

Following is Puzycki’s reply of February 19:

Thanks for your response post.

In asserting that Amendment 43 should be overturned “[b]ased on the religious motivations,” I was reiterating my own interpretation of the Amendment. As I understand it, it does not seem to have any secular foundation and seems to rise only from religious beliefs, but the language of the Amendment itself is not religious in nature. So, I agree that this would be difficult to overturn on the establishment clause. But, if the Amendment is interpreted to allow only for “marriages” with no provision for “domestic partnerships,” then a very strong argument would still have to be invented to defend a possible secular foundation for why homosexual couples should not be afforded any partnership rights.

However, even if we consider the possible allowance for domestic partnerships, then we would have to explain the need to create “domestic partnerships” apart from “marriage.” You have suggested as a “plausible argument” the potentiality of heterosexual marriages to result in children. Notwithstanding the facts you mentioned that homosexual couples can adopt and use artificial insemination, Diana Hsieh already made the valid point that procreation is not an acceptable basis for marriage. As for the historical nominalist argument, that is easily dismissed, as well. I have still heard no secular arguments that stand on their feet.

So, what justification does the government have for establishing a “marriage” for heterosexual couples and a “domestic partnership” for homosexual couples? Even if marriages and domestic partnerships afforded the same rights to couples of either sexual orientation, one must ask why it is necessary for the government to make a legal distinction between straights and gays. As I wrote in my earlier email, “separate” implies inequality–or why else make the distinction? The establishment of “domestic partnerships” would denigrate gays to a second-class status before the law, at least as far as marriage contracts are concerned. The concept of blind justice is meant to suggest that laws should be objective, but if the law instead sees a distinction between heterosexuals and homosexuals, it is not.

Before the law, all individuals must be afforded equal protection of their rights as stipulated in the 14th Amendment. It would therefore be unconstitutional to make any law that establishes separate legal status to individuals based on their sexual orientation. Before the law, sexual orientation is irrelevant. A murderer’s sexual orientation is no more relevant to the crime committed than is a homebuyer’s sexual orientation to a loan. The only questions the law can legitimately ask in regard to marriage are: are these two individuals of age and did they both consent?

While it seems obvious that Amendment 43 was motivated by religion, the Amendment itself makes no mention of God, so demonstrating the Amendment’s intent would be better left to a sophisticated lawyer who could make a clear case based on the establishment clause. However, the Amendment is, clearly, a violation of the equal protection clause because it does not explicitly protect the rights of gays to contract in any form of “marriage” and, secondly, because the potential allowance it implies is inherently unequal and legally baseless.

On that basis, then, Colorado’s courts should overturn the Amendment.

Our disagreement is not about Amendment 43 — we both disapprove of it — but whether it should be overturned by the courts based on the establishment and/or equal-protection clause. I think we also agree that the amendment more plausibly violates the equal-protection clause. However, I’m still going to argue that it should not be overturned even for that reason, though my argument is tentative.

In Colorado, by law the state government distributes a document commonly called the “blue book” that contains the language of ballot measures as well as summaries of arguments from proponents and opponents. The 2006 blue-book information about Amendment 43 pertains to this discussion:

Summary and Analysis

Definitions of marriage affecting Coloradans. Federal statutes define marriage as a legal union between one man and one woman for purposes of all federal laws relating to marital status. Colorado statutes define marriage as a legal union between one man and one woman for purposes of the state’s laws relating to marital status.

For a marriage to be valid under Colorado statutes, it must be: (1) between a man and a woman; and (2) licensed, solemnized, and registered according to established procedures. In addition, Colorado recognizes common law marriage between a man and a woman who live together and hold themselves out publicly as husband and wife. Common law marriages are treated exactly the same as licensed marriages.

Legal effects of marriage in Colorado. The marriage relationship in Colorado provides spouses with a number of legal rights, responsibilities, and benefits, including:

* collecting benefits such as pensions, life insurance, and workers’ compensation without being
designated as a beneficiary;
* jointly incurring and being held liable for debts;
* making medical treatment decisions for each other;
* protection from discrimination based on marital status in areas such as employment and housing;
* filing income taxes jointly; and
* ending a marriage and distributing property through a legal process.

Arguments For

1) The public has an interest in preserving the commonly accepted definition of marriage. Marriage as an institution has historically consisted of one man and one woman and, as such, provides the optimal environment for creating, nurturing, and protecting children and preserving families.

2) A constitutional amendment is necessary to avoid court rulings that expand marriage beyond one man and one woman in Colorado. In Massachusetts, a statutory definition was not sufficient to prevent a court from requiring the state to recognize same-sex marriages. Any change to the definition of marriage should be determined by the voters, not judges.

Arguments Against

1) Language that limits marriage to opposite-sex couples does not belong in Colorado’s Bill of Rights, which generally guarantees individual rights. Amendment 43 may be unconstitutional because it denies same-sex couples and their children the legal benefits and protections that are available to married couples and their children.

2) Adding the proposed language to the constitution is unnecessary because there is already a statutory ban in Colorado on any marriage that does not consist of one man and one woman. Additionally, federal statutes define marriage as between one man and one woman for purposes of federal laws.

I’m not finding much here relevant to the establishment clause. While I think the “arguments for” are faulty, I also think that they are separable from religion.

So what about the equal-protection clause? The second “argument for” claims that the goal is to prevent the courts from overturning state law. And, as an addition to the state’s Constitution, Amendment 43 would restrict the action of state-level courts. But it would not stop federal courts from tossing it out on equal-protection grounds.

The first “argument against” expressly raises the matter of equal protection, claiming that Amendment 43 “denies same-sex couples and their children the legal benefits and protections that are available to married couples and their children.” However, the second argument points out that “there is already a statutory ban in Colorado on any marriage that does not consist of one man and one woman.”

As discussed previously, Amendment 43 does not seem to restrict “domestic partnerships” for gay couples. Thus, if a court were to intervene on equal-protection grounds, I think the more likely route would be for the court to require the state to allow for “domestic partnerships” in statute.

I have suggested that, regardless of the position of the courts, the legislature should provide for “domestic partnerships” through statute.

Would this, as Puzycki argues, still violate the equal-protection clause? I remain unconvinced.

Puzycki claims that offering “marriage” contracts for heterosexual couples but “domestic partnership” contracts for homosexual couples would create separate status for the two, and “‘separate’ implies inequality.” However, unlike segregated schools, having two titles for contracts of romantic unions would not physically separate heterosexuals from homosexuals. The only difference that I can see is that the contract would have a different title on top, which doesn’t strike me as much of an imposition.

I don’t want to fall into the trap of failing to take the principled stand on this one. But I just don’t see any significant difference between “marriages” and “domestic partnerships” for gay couples. Why fight for eliminating a distinction that doesn’t matter? Adding “domestic partnerships” via statute would be a lot easier than removing Amendment 43 and instituting “marriage” for gay couples. As far as I can tell, we’re not even talking about a “whole loaf” versus “half of a loaf” here; we’re talking about the same loaf in a differently-labeled wrapper.

What is the government’s legitimate role in marriage? What distinctions may the government properly draw between unions of heterosexual and homosexual couples, if any?

Ryan Puzycki sent in the following comment on February 13 regarding my previous post:

I enjoyed your post on “A ‘Religious Foundation’ for Law,” but was intrigued by your conclusion that you’re “not convinced that Amendment 43 violates the establishment clause, as there may be some plausible nonreligious arguments in favor of it.” I have attempted, since becoming seriously interested in the issue of gay marriage, to find a secular reason against it. While other Objectivists have raised the possibility that there might be valid arguments against it, none have indicated what those arguments may be. To date, I still have not heard a valid secular argument. From this viewpoint, I do not think there is any way to reconcile Amendment 43.

If marriage is only a religious institution, then the state should have no business involving itself in any aspect of it whatsoever. Those who are married should practice it as a sacred rite, such as the Eucharist or holy orders, outside the authority of the state in the privacy of their homes and churches. The establishment clause would prohibit state interference in the matter, and it would be left to the churches, rightly, to decide whom they are willing to marry. The secular state would still have an obligation to protect those who are unwilling or too young from marriage and to protect the right of the consenting and legally-aged to practice the rite, but otherwise it should confer no special rights, privileges, or benefits.

In upholding the wall of separation, the State would Catholics to marry only one man to one woman, Unitarians to marry gays, and even Mormons to marry one man to several women — and it would prevent Muslims from marrying a man to a child. The state would have no business sanctioning marriage, as a religious institution, nor offering a secular, civil equivalent. Indeed, there could be no to secular equivalent to a holy union made inviolate by God. In the eyes of the secular state, marriage would be nothing more than a religious observance — but it would still have the obligation to protect those who wish to practice it. Of course, conversely, religions would have no right nor incentive to ask the state to interfere in religious affairs.

However, marriage is not only a religious institution. Indeed, in the secular realm, marriage is a contract between consenting adults. The marriage contract has a secular, legal, and necessary basis for the protection of, for instance, the transfer of property between spouses upon death and also the legal adoption of a spouse’s children. This is not an exhaustive list, but a full list would, of course, exclude tax incentives and other state conferred “benefits.” The state’s role is merely to enforce that the contract is between consenting adults by protecting the rights of either party if the terms of the contract are breached. And, as with other contracts, the state has no business delimiting the gender of the parties involved (or, even, how many parties are involved). Amendment 43, therefore, nullifies equal protection before the law (14th Amendment) by delimiting who is allowed to contract and who is not.

I think the unconstitutionality of this is made more clear by considering what Amendment 43 would mean if it were translated to other contracts. The state rightly does not dictate the gender or sexual orientation of parties contracting for mortgages, car sales, employment, or transfers of property. In that vein, Amendment 43’s potential allowance for “domestic partnerships” is entirely irrelevant. In the same way that the state cannot provide “separate but equal” services for blacks and whites, it is equally unconstitutional to mandate heterosexual loans, homosexual mortgages, and certainly separate classifications for marriages. On the wedding train, what is the constitutional basis for reserving a “civil union” car for Plessy and a “marriage” car for Ferguson? The concepts of “domestic partnership” and “civil union” denote a second-class status to gay marriages. “Separate” is inherently unequal.

Based on the religious motivations that spurred Amendment 43 alone, it should be overturned as unconstitutional. But, even if the Amendment were not religiously inspired, there would be no constitutional or secular basis for a state mandate that discriminates based on sexual orientation. The 14th Amendment is a reminder that the government’s primary function is to protect rights equally for all individuals — not to confer to or deny them any. Insofar as the government has an obligation to enforce contracts, it cannot do so if it legally prohibits individuals from contracting. The state has a duty to recognize and protect the right of any and all adults to consent to a legal union. Therefore, if the state is to refer to such a union as a “marriage,” it should recognize only one marriage contract for all consenting adults.

I’d be interested to know your thoughts in response to this, and in light of your post.

Best regards,

Ryan Puzycki

I appreciate the subtle points that Puzycki brings up. I largely agree with Puzycki—except that I’m still not convinced that Amendment 43 should be overturned by the courts.

I emphatically add that I did not support Amendment 43. I voted against it. It was not one of my major issues of the year, though, for I was busy opposing increased wage controls (which passed) and supporting the partial re-legalization marijuana (which failed). I did write the following about an alternative measure (which also failed): “Referendum I would create domestic partnerships. It makes sense to assure legal standing for gay couples.”

Amendment 43—Marriage . . . My vote: No! This amendment is the darling of the Religious Right. … It must be defeated.

Referendum I—Domestic Partnerships . . . My vote: Yes. Voting “yes” on this referendum is perhaps the most clear way of rejecting Christian government in Colorado this election. I do worry that permitting gay marriage will usher in major subjectivism in marriage law, e.g. marry whomever you please, including two women, three men, and a goat. However, that’s not a problem with gay marriage (or domestic partnerships) per se, but rather with people’s failure to understand the proper grounds of marriage. Moreover, I regard that subjectivism as far less evil—and far less likely—than a return to a seriously religious conception of marriage. On that view, Paul and I aren’t really married since we’re not producing more children for God and community. For an example of that view, see this OpinionJournal op-ed by a Methodist Pastor. Oh, and don’t miss Augustine’s fantastically revolting views on marriage. Moreover, consider the main argument in our Colorado “Blue Book” against the referendum:

Domestic partnerships diminish the significance of marriage for society by reducing marriage to a list of benefits and responsibilities. The benefits given to married couples are intended to support child rearing by one man and one woman. The state has an interest in restricting recognition and legal protection to these married couples to provide stability for the individuals, their families, and the broader community.

In other words, marriage is a mysterious gift from God, not to be understood in words by man. Also, the sole justification for marriage is the demands of raising proper children in a stable family and community. People who choose not to procreate have no claim to the goods of marriage. In general, marriage is not two people committing to integrating their lives according to their own values. That’s obviously too selfish and too individualistic.

Unfortunately, this “domestic partnership” measure will impose more government-mandated entitlements (e.g. health care and worker’s compensation) upon businesses, but that’s a problem with the government-mandated entitlements, not domestic partnership per se.

So I’d strongly recommend voting in favor of this measure.

Last year, I also wrote an article titled, “A Defense of Marriage for Couples.” There is a “contractual basis of marriage,” I argued, and it is among the government’s legitimate functions to facilitate and uphold contracts. However, I saw no important difference between “gay marriage” and “domestic partnership;” I wrote that “gay marriage (or ‘domestic partnership’) rightly puts homosexual couples on equal footing with heterosexual couples…”

Puzycki writes, “Based on the religious motivations that spurred Amendment 43 alone, it should be overturned as unconstitutional.” I disagree with this argument.

Take, for example, the abolition of slavery. Obviously that was religiously motivated. There may have been some abolitionists who were not Christians and who did not offer Christian reasons for abolishing slavery, but I am not able to name any. Obviously, we do not wish to re-institute slavery because its abolition was religiously motivated.

The important point, as I argued in my recent post, is whether the reasons for a law are separable from religion: “[S]ome laws have a solid secular moral foundation (regardless of whether they also match some religious code), while other laws have a strictly religious foundation. Laws that arise solely from religious beliefs should be repealed or overturned for precisely that reason.”

The protection of individual rights, regardless of race, does not fundamentally depend upon any religious doctrine. It is entirely separable from religion. For example, Ayn Rand eloquently argued against racism on purely secular grounds, and she argued that rights arise from man’s nature as a reasoning being, which has nothing to do with race.

The spending of tax dollars to teach creationism is an example of a policy that is not separable from religion. Creationism promotes a distinctly religious view that a supernatural being or force created the world and life.

I’m still not convinced that Amendment 43, whatever its faults and problems, violates the establishment clause or the equal-protection clause. I wrote:

[T]here may be some plausible non-religious arguments in favor of it. If it’s true that Amendment 43 allows for “domestic partnerships”—an equivalent of the marriage contract for gay couples—then that strikes me as a reasonable alternative that should be pursued through the legislature. The courts are not always the answer to religiously-motivated bigotry against homosexuals.

Note that I did not claim that the non-religious arguments must be valid. I claimed merely that they must be “plausible.” (By the way, I know of no Objectivist who has claimed to make a valid argument against gay marriage, but I’d be interested in learning about such claims if they exist.)

I think that I can offer at least one such plausible argument: “The difference between heterosexual marriage and homosexual domestic partnership is that only heterosexual marriage can result in one partner impregnating another. Obviously female domestic partners can become pregnant, but the sperm necessarily comes from a party external to the partnership. Male partners can adopt children but not give birth themselves. Thus, while the domestic partnership contract is substantially similar to the marriage contract, it must accommodate the real, biologically-based differences between heterosexual and homosexual couples.”

I don’t think that argument ultimately holds up, because heterosexual, married couples can also adopt children and use artificial insemination, and the marriage contract seems to accommodate such situations.

Here is another argument that is less plausible (because based on philosophical nominalism) but still not religious: “By common understanding, practically everyone sees ‘marriage’ as the union of a man and a woman. Thus, we need some other name to describe unions of homosexual couples.”

I’m convinced that Amendment 43 was unnecessary, that it doesn’t belong in the state’s Constitution, and that it was largely motivated by bigotry rooted in religious dogma. Yet I am still not persuaded that Amendment 43 should be overturned by the courts based on the establishment or equal-protection clause. (I remain open to debate on this matter, and the argument about equal protection strikes me as more forceful.)

However, Puzycki’s main point seems to be that homosexual couples deserve comparable protection of contract law, and on this point I quite agree.